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INTELLECTUAL INTELLECTUAL PROPERTY RIGHTSPROPERTY RIGHTS

ByByPreeti PatelPreeti Patel

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Intellectual property laws and enforcement vary Intellectual property laws and enforcement vary widely from jurisdiction to jurisdiction.widely from jurisdiction to jurisdiction.

Intellectual property laws confer a bundle of Intellectual property laws confer a bundle of exclusive rights in relation to the particular form exclusive rights in relation to the particular form or manner in which ideas or information are or manner in which ideas or information are expressed or manifested, and not in relation to expressed or manifested, and not in relation to the ideas or concepts themselvesthe ideas or concepts themselves

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TYPES OF IPRTYPES OF IPR

The term “Intellectual Property" denotes the The term “Intellectual Property" denotes the specific legal rights specific legal rights ––

1.1. Copyrights (e.g. book)Copyrights (e.g. book)2.2. Patents (e.g. new drug)Patents (e.g. new drug)3.3. Trademark (e.g. symbol)Trademark (e.g. symbol)4.4. Trade Secrets (e.g. new method)Trade Secrets (e.g. new method)

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CopyrightCopyright may subsist in creative and artistic may subsist in creative and artistic works (e.g. books, movies, music, paintings, works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright photographs, and software) and give a copyright holder the exclusive right to control eproduction holder the exclusive right to control eproduction or adaptation of such works for a certain period or adaptation of such works for a certain period of time (historically a period of between 10 and of time (historically a period of between 10 and 30 years depending on jurisdiction, more 30 years depending on jurisdiction, more recently the life of the author plus several recently the life of the author plus several decades).decades).

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PatentPatent

A patentA patent is a right to gives the patent holder to is a right to gives the patent holder to prevent others from practicing the invention prevent others from practicing the invention without a license from the inventor for a certain without a license from the inventor for a certain period of time (typically 20 years from the filing period of time (typically 20 years from the filing date of a patent application). date of a patent application).

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Trade MarkTrade Mark

A trademarkA trademark is a distinctive sign which is used is a distinctive sign which is used to distinguish the products or services of to distinguish the products or services of different businesses. different businesses.

An industrial designAn industrial design right protects the form of right protects the form of appearance, style or design of an industrial appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles). object (e.g. spare parts, furniture, or textiles).

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A trade secretA trade secret ("confidential information") is ("confidential information") is secret, nonsecret, non--public information concerning the public information concerning the commercial practices or proprietary knowledge commercial practices or proprietary knowledge of a business, public disclosure of which may of a business, public disclosure of which may sometimes be illegalsometimes be illegal

Patents, trademarks, and designs rights are Patents, trademarks, and designs rights are sometimes collectively known as sometimes collectively known as industrial industrial propertyproperty, as they are typically created and used , as they are typically created and used for industrial or commercial purposes.for industrial or commercial purposes.

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Copyright Copyright (e.g. books, paintings, films)(e.g. books, paintings, films)1.1. Protects the work of expressions, not the ideas ( ie. the Protects the work of expressions, not the ideas ( ie. the

form a creator/publisher gives to ideas). Limited form a creator/publisher gives to ideas). Limited protection against substitute.protection against substitute.

2.2. Protection focuses on copyingProtection focuses on copying3.3. Long but limited protection (life + 50years in Canada)Long but limited protection (life + 50years in Canada)4.4. Covers original work of authorship in a tangible Covers original work of authorship in a tangible

medium of expression (e.g. book)medium of expression (e.g. book)5.5. Registration is inexpensive. Copyrights are easy to Registration is inexpensive. Copyrights are easy to

obtainobtain

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PatentsPatents (i.e. inventions)(i.e. inventions)1.1. Protect the ideas, not just expressionsProtect the ideas, not just expressions2.2. Registration is necessary (patent office)Registration is necessary (patent office)3.3. Requirements: utility, novelty, nonRequirements: utility, novelty, non--obviousness. obviousness.

Difficult to obtainDifficult to obtain4.4. Short protection periods but greater protection Short protection periods but greater protection

against infringersagainst infringers

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TrademarksTrademarks (e.g. brand names, product logos)(e.g. brand names, product logos) Protect symbols and phrasesProtect symbols and phrases Registration is not necessary but easyRegistration is not necessary but easy Protection periods varyProtection periods vary Distinctiveness is requiredDistinctiveness is required

Trade SecretsTrade Secrets (e.g. formula, program, (e.g. formula, program, technique, method, process)technique, method, process)

Derives independent economic value from not being knownDerives independent economic value from not being known Registration is not required. Perpetual protection is possibleRegistration is not required. Perpetual protection is possible

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Intellectual Property Rights in IndiaIntellectual Property Rights in India

There is a wellThere is a well--established statutory, administrative and established statutory, administrative and judicial framework to safeguard intellectual property judicial framework to safeguard intellectual property rights in India, whether they relate to patents, rights in India, whether they relate to patents, trademarks, copyright or industrial designs etc.trademarks, copyright or industrial designs etc.

WellWell--known international trademarks have been known international trademarks have been protected in India even when they were not registered protected in India even when they were not registered in India. in India.

The Indian Trademarks LawThe Indian Trademarks Law has been extended has been extended through court decisions to service marks in addition to through court decisions to service marks in addition to trade marks for goods. trade marks for goods.

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FeaturesFeatures

•• IPR are property rights over information, knowledge and ideasIPR are property rights over information, knowledge and ideas

•• IPR are exclusive, trade able and temporaryIPR are exclusive, trade able and temporary

•• IPR differ in the information being protected IPR differ in the information being protected (copyright, patent, trade secrets, trademarks)(copyright, patent, trade secrets, trademarks)

•• IPR protect information that has public good characteristics IPR protect information that has public good characteristics (non(non--excludability and nonexcludability and non--rivalry consumptionrivalry consumption))

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IPR : Digital EraIPR : Digital Era

Computer software companies have successfully Computer software companies have successfully curtailed piracy through court orders. curtailed piracy through court orders.

Computer databases have been protected. Computer databases have been protected.

The courts, under the doctrine of breach of The courts, under the doctrine of breach of confidentiality, accorded an extensive protection of confidentiality, accorded an extensive protection of trade secrets. trade secrets.

Right to privacy, which is not protected even in some Right to privacy, which is not protected even in some developed countries, has been recognized in India. developed countries, has been recognized in India.

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IP, protected through law, like any other form of IP, protected through law, like any other form of property can be a matter of trade, that is, it can be property can be a matter of trade, that is, it can be owned, bequeathed, sold or bought.owned, bequeathed, sold or bought. The major The major features that distinguish it from other forms are their features that distinguish it from other forms are their intangibility and nonintangibility and non--exhaustion by consumption.exhaustion by consumption.

IP is the foundation of knowledgeIP is the foundation of knowledge--based economy. based economy. It pervades all sectors of economy and is increasingly It pervades all sectors of economy and is increasingly becoming important for ensuring competitiveness of becoming important for ensuring competitiveness of the enterprises. the enterprises.

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International Organizations & TreatiesInternational Organizations & Treaties

A UN agency, namely, World Intellectual A UN agency, namely, World Intellectual Property Organization (WIPO) based in Geneva Property Organization (WIPO) based in Geneva administers treaties in the field of intellectual administers treaties in the field of intellectual property.property. India is a member of WIPO.India is a member of WIPO.

Department of Industrial Policy & Promotion is Department of Industrial Policy & Promotion is the nodal Department in the Government of the nodal Department in the Government of India for all matters concerning WIPO.India for all matters concerning WIPO.

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India is also a member of the World Trade India is also a member of the World Trade Organization (WTO).Organization (WTO).

The WTO agreement on Trade Related Aspects of The WTO agreement on Trade Related Aspects of Intellectual Property (TRIPS) .Intellectual Property (TRIPS) .

This Agreement made protection of intellectual This Agreement made protection of intellectual property an enforceable obligation of the Member property an enforceable obligation of the Member States.States.

TRIPS Agreement sets out minimum standards of TRIPS Agreement sets out minimum standards of intellectual property protection for Member States.intellectual property protection for Member States.

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1.The Patents (Amendment) Act, 1999 passed by the 1.The Patents (Amendment) Act, 1999 passed by the Indian Parliament on March 10, 1999 to amend the Indian Parliament on March 10, 1999 to amend the Patents Act of 1970 that provides for establishment of Patents Act of 1970 that provides for establishment of a mail box system to file patents and accords exclusive a mail box system to file patents and accords exclusive marketing rights for 5 years. marketing rights for 5 years.

2.2. The Trade Marks Bill, 1999 which repeals and The Trade Marks Bill, 1999 which repeals and replaces the Trade and Merchandise Marks Act, 1958 replaces the Trade and Merchandise Marks Act, 1958 passed by the Indian Parliament in the Winter Session passed by the Indian Parliament in the Winter Session that concluded on December 23, 1999. that concluded on December 23, 1999.

3.3. The Copyright (Amendment) Act, 1999 passed by The Copyright (Amendment) Act, 1999 passed by both houses of the Indian Parliament, and signed by the both houses of the Indian Parliament, and signed by the President of India on December 30, 1999. President of India on December 30, 1999.

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Geographical Indications of Goods Geographical Indications of Goods (Registration & Protection) Bill, 1999 approved (Registration & Protection) Bill, 1999 approved by both houses of the Indian Parliament on by both houses of the Indian Parliament on December 23, 1999. December 23, 1999.

The Industrial Designs Bill, 1999 which replaces The Industrial Designs Bill, 1999 which replaces the Designs Act, 1911 on December 23, 1999 the Designs Act, 1911 on December 23, 1999 and is presently before the Lower House for its and is presently before the Lower House for its consideration. consideration.

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The Patents (Second Amendment) Bill, 1999 to The Patents (Second Amendment) Bill, 1999 to further amend the Patents Act, 1970 and make it further amend the Patents Act, 1970 and make it TRIPS compliant was introduced in the Upper TRIPS compliant was introduced in the Upper House of Indian Parliament on December 20, House of Indian Parliament on December 20, 1999. 1999.

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Projects relating to the modernization of patent Projects relating to the modernization of patent information services and trademarks registry information services and trademarks registry have been implemented with help from have been implemented with help from WIPO/UNDP. WIPO/UNDP.

The Patents Law provides for compulsory The Patents Law provides for compulsory license to avoid misuse of an Exclusive license to avoid misuse of an Exclusive Marketing Right by the right holder. Marketing Right by the right holder.

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In terms of the TRIPS Agreement, India has In terms of the TRIPS Agreement, India has time till January 1, 2005 to extend patent time till January 1, 2005 to extend patent protection to this area. protection to this area.

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Intellectual Property Appellate Board Intellectual Property Appellate Board (IPAB)(IPAB)

An An Intellectual Property Appellate BoardIntellectual Property Appellate Board(IPAB) has been set up at (IPAB) has been set up at ChennaiChennai to hear to hear appeals against the decisions of Registrar of appeals against the decisions of Registrar of Trademarks, Geographical Indications and the Trademarks, Geographical Indications and the Controller of Patents.Controller of Patents.

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Both foreign and domestic IPR holders are Both foreign and domestic IPR holders are treated equally under Indian law. treated equally under Indian law.

The Government also brought out A Handbook The Government also brought out A Handbook of Copyright Law to create awareness about of Copyright Law to create awareness about copyright amongst the stakeholders, copyright amongst the stakeholders, enforcement agencies, professional users like the enforcement agencies, professional users like the scientific and academic communities and scientific and academic communities and members of the public. members of the public.

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At present there are three registered copyright societies. At present there are three registered copyright societies. These are These are --1. The Society for Copyright Regulations of 1. The Society for Copyright Regulations of

Indian Producers of Films & Television Indian Producers of Films & Television (SCRIPT) for cinematography films, (SCRIPT) for cinematography films,

2. Indian Performing Rights Society Limited 2. Indian Performing Rights Society Limited (IPRS) for musical works and (IPRS) for musical works and

3. Phonographic Performance Limited (PPL) for sound 3. Phonographic Performance Limited (PPL) for sound recordings. recordings.

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These societies, particularly the PPL and the These societies, particularly the PPL and the IPRS, have been quite active in antiIPRS, have been quite active in anti--piracy work. piracy work.

The PPL has even set up a special antiThe PPL has even set up a special anti--piracy piracy cell under a retired Director General of Police, cell under a retired Director General of Police, and this cell has been working in tandem with and this cell has been working in tandem with the police. the police.

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WIPO Guide to Intellectual Property WIPO Guide to Intellectual Property WorldwideWorldwide

This Guide is the first of its kind published by World Intellectual This Guide is the first of its kind published by World Intellectual Property Organization (WIPO) . Property Organization (WIPO) .

It gives essential information on intellectual property by means of It gives essential information on intellectual property by means of individual country profiles on WIPO Member States. individual country profiles on WIPO Member States.

The profiles include Basic legislation, membership of The profiles include Basic legislation, membership of international treaties, administrative structures, governmental and international treaties, administrative structures, governmental and nonnon--governmental bodies for information and enforcement, governmental bodies for information and enforcement, educational institutions and industrial property statistics; useful educational institutions and industrial property statistics; useful contact addresses are provided for readers needing further contact addresses are provided for readers needing further information.information.

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It is intended as a tool for all kinds of readers, It is intended as a tool for all kinds of readers, not only for officials working in this field, but not only for officials working in this field, but for legal practitioners, teachers, students, for legal practitioners, teachers, students, researchers, creators or owners of intellectual researchers, creators or owners of intellectual property, as well as for interested members of property, as well as for interested members of the general public.the general public.

Certain Internet links to some country offices Certain Internet links to some country offices are provided for information purposes only.are provided for information purposes only.

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The World Intellectual Property Organization The World Intellectual Property Organization (WIPO) is an international intergovernmental (WIPO) is an international intergovernmental organization dedicated to ensuring that the organization dedicated to ensuring that the rights of creators and owners of intellectual rights of creators and owners of intellectual property are protected worldwide and that property are protected worldwide and that inventors and authors are thus recognized and inventors and authors are thus recognized and rewarded for their ingenuity. rewarded for their ingenuity.

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This international protection acts as a spur to This international protection acts as a spur to human creativity, pushing forward the human creativity, pushing forward the boundaries of science and technology and boundaries of science and technology and enriching the world of literature and the arts. By enriching the world of literature and the arts. By providing a stable environment for the providing a stable environment for the marketing of intellectual property products, such marketing of intellectual property products, such protection also facilitates international trade.protection also facilitates international trade.

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The information in this Guide is drawn from data The information in this Guide is drawn from data supplied by the governmental administrations of the supplied by the governmental administrations of the countries concerned, as well as, in some cases, from countries concerned, as well as, in some cases, from WIPO sources, supplemented in parts by information WIPO sources, supplemented in parts by information from the World Trade Organization (WTO). from the World Trade Organization (WTO).

The titles of the laws and of the government The titles of the laws and of the government administrations responsible for intellectual property in administrations responsible for intellectual property in English, French and Spanish speaking countries are English, French and Spanish speaking countries are given, whenever available, in their original language.given, whenever available, in their original language.

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Research and private study Research and private study Fair dealing with a Fair dealing with a literary, dramatic, musical or artistic work for the literary, dramatic, musical or artistic work for the purposes of research for a nonpurposes of research for a non--commercial purposecommercial purpose

does not infringe any copyright in the work provided does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.that it is accompanied by a sufficient acknowledgement.

. Copying for purpose of research or private study. Copying for purpose of research or private study . Copying for purpose of criticism or review.. Copying for purpose of criticism or review. . Copying for non. Copying for non--profit educational purposesprofit educational purposes

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THE DIGITAL MILLENNIUMTHE DIGITAL MILLENNIUMCOPYRIGHT ACT OF 1998COPYRIGHT ACT OF 1998

Nonprofit library, archive and educationalNonprofit library, archive and educationalinstitution exception (section 1201(d)). institution exception (section 1201(d)).

A good faith determination as to whether theyA good faith determination as to whether theywish to obtain authorized access to the work.wish to obtain authorized access to the work.

Section 404 of the DMCA amends the exemptionSection 404 of the DMCA amends the exemptionfor nonprofit libraries and archives in section 108for nonprofit libraries and archives in section 108of the Copyright Act to accommodate digitalof the Copyright Act to accommodate digital

technologies and evolving preservation practices.technologies and evolving preservation practices.

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.. Prior to enactment of the DMCA, section 108Prior to enactment of the DMCA, section 108

permitted such libraries and archives to make apermitted such libraries and archives to make asingle facsimile (i.e., not digital) copy of a work forsingle facsimile (i.e., not digital) copy of a work forpurposes of preservation or interlibrary loan.purposes of preservation or interlibrary loan.amended, section 108 permits up to 3 digital copies ofamended, section 108 permits up to 3 digital copies ofunpublished and damaged works for preservation ofunpublished and damaged works for preservation of

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Copyrighted material provided that digital copies Copyrighted material provided that digital copies are not made available to the public outside the are not made available to the public outside the library premises or put on the Internet.library premises or put on the Internet.

Also permits a library to copy a work into a new Also permits a library to copy a work into a new format if the original format becomes format if the original format becomes obsoleteobsolete——that is, the machine or device used to that is, the machine or device used to render the work perceptible is no longer render the work perceptible is no longer manufactured or is no longer reasonably manufactured or is no longer reasonably available in the commercial marketplace.available in the commercial marketplace.

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These copies to be used by L library users within the These copies to be used by L library users within the library and . interlibrary and . inter--library loan purposeslibrary loan purposes

Legal issuesLegal issues. Libraries, particularly at universities without . Libraries, particularly at universities without law schools, are often the source of legal information law schools, are often the source of legal information about copyright law, mainly about copyright law, mainly U.S. Code Title 17 U.S. Code Title 17 especially especially sections 107sections 107--108). 108).

In addition to providing guidance to students and In addition to providing guidance to students and faculty about using copyrighted works appropriatelyfaculty about using copyrighted works appropriatelyand about their rights asand about their rights as

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The most notable changes affect theThe most notable changes affect thedefinition of ‘fair dealing’ and libraries’ ability to definition of ‘fair dealing’ and libraries’ ability to make copies for entities conducting commercial make copies for entities conducting commercial research.research.

Such research is no longer covered as anSuch research is no longer covered as anexemption from copyright law.exemption from copyright law.

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Digital Copying TechnologyDigital Copying Technology

. File sharing on Internet is easy. File sharing on Internet is easy

. A single digital copy can be used for worldwide . A single digital copy can be used for worldwide distribution in spite of copyright lawsdistribution in spite of copyright laws

. Any one with access to Internet and scanner. Any one with access to Internet and scannercan now copy a work and make it available to millions can now copy a work and make it available to millions of users for download and print.of users for download and print.

. Publishers are increasing using the Internet. Publishers are increasing using the Internetas a global way to offer their publications toas a global way to offer their publications tothe users community.the users community.

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Publishers usually will agree to an author’s Publishers usually will agree to an author’s request to retain rights to post content to a request to retain rights to post content to a website or institutional repository.website or institutional repository.

Faculty should be encouraged to retain these Faculty should be encouraged to retain these rights before and after publishing their work so rights before and after publishing their work so they can contribute their content to online they can contribute their content to online repositoriesrepositories

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. A license is an agreement between the . A license is an agreement between the publisher and the user wherein the publisher publisher and the user wherein the publisher transfers the nontransfers the non--exclusive and non transferable exclusive and non transferable right to use materials to the user or licensee.right to use materials to the user or licensee.. License agreements are used by the publishers. License agreements are used by the publishersas legal method for controlling the use of their e as legal method for controlling the use of their e resources.resources.

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The licenses for electronic resources impose two The licenses for electronic resources impose two types of restrictions on its usage, namelytypes of restrictions on its usage, namelyi) who can use these resources; andi) who can use these resources; andii) how the resources can be used.ii) how the resources can be used.

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EE--resource Licensingresource Licensing

. Systematic or programmatic downloading,. Systematic or programmatic downloading,retention, and printing are prohibited. Forretention, and printing are prohibited. For

example, you cannot download entire issue of aexample, you cannot download entire issue of ajournal or print out several copies of the samejournal or print out several copies of the samearticle.article.

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Electronic distribution of content is generallyElectronic distribution of content is generallyrestricted.restricted.

Multiple copies of digital documents and theirMultiple copies of digital documents and theircirculation is prohibited. circulation is prohibited.

Copyright laws protect published material in Copyright laws protect published material in any format so that it cannot be copied except in any format so that it cannot be copied except in accordance with fair use.accordance with fair use.

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Viewing, downloading, copying, printing and Viewing, downloading, copying, printing and saving a copy of search resultssaving a copy of search results

Viewing, downloading, copying, printing and Viewing, downloading, copying, printing and saving individual articlessaving individual articles

Using eUsing e--resources for scholarly, educational or resources for scholarly, educational or scientific research, teaching, private study and scientific research, teaching, private study and clinical purposesclinical purposes

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Sending a copy of an article to another authorized user Sending a copy of an article to another authorized user (i.e. current faculty, students or staff)(i.e. current faculty, students or staff)

Posting the URL to the publisher's version of the article Posting the URL to the publisher's version of the article on a class website (publisher links will allow)on a class website (publisher links will allow)

Use of robots or intelligent agents to do systematic, Use of robots or intelligent agents to do systematic, bulk or automatic downloading is not permittedbulk or automatic downloading is not permitted

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Use of robots or intelligent agents to do Use of robots or intelligent agents to do systematic, bulk or automatic downloading is systematic, bulk or automatic downloading is not permittednot permitted

Systematic downloading or printing of entire Systematic downloading or printing of entire journal issues or large portions of other ejournal issues or large portions of other e--resources is not permittedresources is not permitted

Using eUsing e--resources for commercial gain is not resources for commercial gain is not permitted (i.e. reselling, redistributing or permitted (i.e. reselling, redistributing or republishing.)republishing.)

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Transmitting, disseminating or otherwiseTransmitting, disseminating or otherwisemaking online content available to unauthorized making online content available to unauthorized users (i.e. sending to mailing lists or electronic users (i.e. sending to mailing lists or electronic bulletin boards) is not permitted.bulletin boards) is not permitted.

Posting the publisher's version or PDF of an Posting the publisher's version or PDF of an article to an open class website isarticle to an open class website is

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Copy Protection SolutionsCopy Protection Solutions

WaterWater--markingmarking. Watermarking embeds a digital signal in text, . Watermarking embeds a digital signal in text,

image, audio or video files, which may contain image, audio or video files, which may contain information and proof of rights to a product's information and proof of rights to a product's owner or publisher.owner or publisher.

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Challenges to Copyrightable Work inChallenges to Copyrightable Work inDigital Environment in IndiaDigital Environment in India

In India the laws to considerIn India the laws to consider-- about the useabout the useof Electronic Data Interchange (EDI), of Electronic Data Interchange (EDI), ecommerce, copyright, IPR etc.ecommerce, copyright, IPR etc.

. Although provisions in IT Act, 2000. Although provisions in IT Act, 2000-- still needstill needto change the Evidence Act to recogniseto change the Evidence Act to recognisedigital signaturesdigital signatures

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. Changes required in Indian Penal Code ,. Changes required in Indian Penal Code , 1860, Evidence Act, 1872, Indian Patents1860, Evidence Act, 1872, Indian Patents ActAct-- to recognise emerging technologiesto recognise emerging technologies towardstowards . Section 62 of the Indian Copyright Act, 1957. Section 62 of the Indian Copyright Act, 1957 provides for jurisdiction to any court havingprovides for jurisdiction to any court having a direct jurisdiction over the mattera direct jurisdiction over the matter

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Digital SignatureDigital Signature. Digital signature is an electronic rather than a . Digital signature is an electronic rather than a written signature that can be used to written signature that can be used to authenticate the identity of the sender of a authenticate the identity of the sender of a message or a document. message or a document. . It can also be used to ensure that the original . It can also be used to ensure that the original content of the message or document has not content of the message or document has not been changed.been changed.

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The IT Act provides for extraThe IT Act provides for extra--territorial territorial jurisdiction to cyber crime cases.jurisdiction to cyber crime cases.

Section 74 providesSection 74 provides that where any offencethat where any offenceinvolves a computer or computer resource ininvolves a computer or computer resource inIndia , it can be taken note of under IndianIndia , it can be taken note of under Indianlaws.laws.

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